The U.S. Supreme Court unanimously ruled yesterday that colleges and universities that accept federal funding must allow military recruiters “equal access” on campus. The 8-0 ruling in the case of Rumsfeld vs. Forum for Academic and Institutional Rights (FAIR) overturned a 2004 appellate court decision in favor of FAIR, which had initially claimed that the Solomon Amendment, a piece of legislation passed in 1995 which states that law schools that ban military recruiting risk losing their federal funding, was “unconstitutional.” The amendment has since been reinterpreted and revised by Congress to mean that if such recruiting is barred, the entire university will lose its federal funding.
FAIR is a group of American law professors and administrators which said that the military’s “don’t ask, don’t tell” policy is at odds with institutional anti-discrimination policies, and that the Solomon Amendment places an unfair condition on federal money. In Sept. 2005, Cornell joined Yale, Columbia, Harvard, New York University, University of Pennsylvania, and University of Chicago in filing amicus curiae, or “friends of the court” brief which called the amendment “an unconstitutional condition on federal funding,” in support of FAIR.
“The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” wrote Chief Justice John J. Roberts in the decision. “Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. … It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”
When the ruling was handed down yesterday morning, however, Cornellians who closely followed the case were not surprised by its outcome.
“We’re dealing with the military and the Supreme Court is often deferential to the military,” said Prof. Stewart Schwab, law, the Allan R. Tessler Dean.
Prof. Gary Simson, law, who worked to help file two amicus briefs in support of FAIR, agreed with Schwab.
“Historically, the court has been extremely deferential to Congress in military matters,” Simson said. “Whether it involved free speech or equal protection, they simply don’t apply the same way when the military is involved. The [court] bent over too far in this case. …We’re mounting efforts in Iraq and we’re having difficulty recruiting people, [so] there’s no question that that’s on the court’s mind.”
In the past year, several student groups have protested against the amendment, which Augustin Le law ’07 claimed to be a perpetuation of “military discrimination.” Le is the co-president of Cornell Law School’s Lambda Law Students Association, which represents the lesbian, gay, bisexual and transgender (LGBT) members of the law school community.
“[We are] thankful to the law school faculty for their unanimous support of Cornell Law School’s non-discrimination policy. We also appreciate the law school’s commitment to fighting the discriminatory effects that the Solomon Amendment has on
gay and lesbian students,” Le said to The Sun. “We hope that the faculty will continue to
support us as we develop strategies to challenge the government’s discriminatory policies against gays and lesbians.”
“We are terribly disappointed that the Supreme Court chose to uphold the Solomon Amendment,” said Simeon Moss ’73, Cornell press office director. “Cornell joined other universities … to challenge the constitutionality of the amendment. [The University] continues to uphold the longstanding anti-discrimination policy.”
Although there is no higher court to appeal the case to, Simson points out that there are several ongoing cases that may eventually reach the Supreme Court. At the same time, the court’s decision sets the precedent for future cases of a similar nature.
“The basic opinion [in yesterday’s decision] was pretty sweeping in terms of its reasoning,” Simson said.
Schwab said that groups on campus would continue to protest the military’s discriminatory policy.
“[The ruling] is not really going to change what the law school does. We’ve already done what we call amelioration efforts, statements that the military is violating our policy,” Schwab said. “We don’t willingly go along with it. … They are violating our anti-discrimination policy, and certainly the Supreme Court said the law schools can exercise those free speech rights, so we’ll continue to do that.”
Ariel Harman law [don’t know year!] described the ruling’s impact on the LGBT community.
“This is a blow to both the First Amendment and LGBT rights at a time when both are under attack. The decision itself is not surprising, though I am surprised that the Court was unanimous,” he said. “Cornell University displayed some degree of courage when it signed on to the University amicus brief. We hope they will continue to support their LGBT students and all interested individuals by not allowing the issue of LGBT rights to die.”